McDonald v Auckland City Council

[2021] NZHC 457

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-482

[2021] NZHC 457

BETWEEN

MALCOLM MCDONALD

Appellant

AND

AUCKLAND CITY COUNCIL

Respondent

Hearing:

8 March 2021

Appearances:

A Williams for the Appellant

D J Collins and L Faletau for the Respondent

Judgment:

10 March 2021

JUDGMENT OF GORDON J

This judgment was delivered by me on 10 March 2021 at 3.30 pm.

Registrar/Deputy Registrar Date:

Solicitors:           Kidd Legal, Manukau

Auckland Council, Auckland

MCDONALD v AUCKLAND CITY COUNCIL [2021] NZHC 457 [10 March 2021]

Introduction

[1]    The appellant, Malcolm McDonald, appeals part of a decision of Judge Mahon in the Manukau District Court dated 27 October 2020 refusing a discharge without conviction on one charge under ss 57(2) and 57(3) of the Dog Control Act 1996 (the Act) and ordering the destruction of Mr McDonald’s dog, a female Mastiff cross, Muimui.

[2]    Mr McDonald appeals only the part of the decision ordering the destruction of the dog. He does so on the basis of new evidence filed in this Court. He does not otherwise argue the Judge was wrong in finding the circumstances of the offence were not exceptional.

[3]Auckland Council (the Council) opposes the appeal.

Factual background

[4]Mr McDonald pleaded guilty to an agreed summary of facts.

[5]    On 16 June 2020, at around 2.30 pm while entering her hairdressers the witness saw a dog (Mr McDonald’s dog, Muimui) sitting outside a house. Approximately 5-10 minutes later, the witness saw erratic movement in her peripheral vision. The witness saw Muimui moving around with something grey in its mouth. The witness saw a flash of white and realised Muimui was tossing around a domestic cat.

[6]    The witness told her hairdresser what she could see. Her hairdresser ran outside and yelled at the dog to stop. The witness called to the hairdresser as she was concerned for her safety. The hairdresser took a bucket of water, got into her car and drove at the dog while using her car horn.

[7]    A man and a woman driving past in a car noticed the incident and stopped right next to Muimui. The male took hold of the dog and the female picked up the cat. She went to a property nearby and asked the occupants if the cat was theirs. It was not but the occupants provided the woman with a box. The woman put the cat in the box. The cat meowed a few times and then stopped.

[8]    The  hairdresser  tied  Muimui  to  a  tree.   Around  15–20  minutes  later   Mr McDonald’s son arrived home and returned the dog to his property. The woman who helped out with the cat gave Mr McDonald’s son the cat to look after.

[9]    The cat owner then returned a short time later. The cat was returned to her. The cat died (it is not clear exactly when).

District Court decision

[10]   On 27 October 2020, the Judge first followed the three-step process required under s 107 of the Sentencing Act 2002 in considering an application for discharge without conviction.

[11]   In balancing the gravity of the offending with the personal circumstances of Mr McDonald, Judge Mahon noted that discharge without conviction is often inappropriate in dog control matters as deterrent penalties are generally required.1 For that reason, he could not discharge the defendant without conviction. Moreover, even if it were possible to do so, the consequences of a conviction for Mr McDonald were not disproportionate to the gravity of the offending. Muimui’s attack directly led to the death of a domestic animal. It was at the serious end of possible offending under the section. The application for discharge without conviction was accordingly declined.

[12]   Judge Mahon then considered whether the circumstances of the offence were exceptional and did not warrant the destruction of the dog. Mr McDonald had filed a detailed affidavit describing the importance of Muimui to his family, and particularly his son Kirby, who derives great psychological support from her. It was noted that Mr McDonald’s family had apologised to the owner of the cat and were willing to pay reparation if Muimui was not destroyed. Judge Mahon also noted Muimui was not generally an aggressive dog.

[13]   Turning to the issue of a destruction order, Judge Mahon referred to the judgment of the Court of Appeal in Auckland Council v Hill, where the Court set out

1      Georgiou v Police HC Wellington AP89/97, 21 May 1997 at 3.

the appropriate test for assessing whether there are exceptional circumstances of the offence, such that a destruction order is not warranted.2 In light of Hill, Judge Mahon considered he was unable to take into account any previous or subsequent good behaviour of Muimui, nor any alternate possible explanations for how the cat may have died. The circumstances of the offence were not exceptional and therefore did not displace the presumption in s 57(3) of the Act that a destruction order should be made. Mr McDonald was convicted under s 57(2) and Judge Mahon made an order for the destruction of Muimui.

Issues on appeal

[14]The issues are:

(a)First, whether the new evidence should be admitted; and

(b)If so, does the new evidence demonstrate that the circumstances of the offence were exceptional so that the destruction order should be quashed?

The new evidence

[15]   The evidence is in the form of two affidavits, one from Shuk Ha Jacky McDonald (Mr McDonald’s wife) sworn 9 December 2020 and one from Man Ching Zoee Chan (Shuk Ha Jacky McDonald’s daughter) also sworn 9 December 2020.   Mr Williams also seeks leave to adduce a document headed “Building Report” dated 30 November 2020 (Building Report).

Affidavit of Shuk Ha Jacky McDonald

[16]   Mrs McDonald says that in early 2019 someone broke into her car which was parked on their property and stole her sunglasses. She says a few months later her husband found the ashtray compartment from her car lying on the grass verge in front of the house. She says since then she has become very alert to keep windows, doors and gates shut around the house.

2      Auckland Council v Hill [2020] NZCA 52 at [64].

[17]   She also says that when she is out of the house she always keeps the two dogs (Muimui and a labrador) in the garden. She says on 16 June 2020, before she went out she checked that the gate into the rear garden was securely shut and latched.

[18]   She says she believes someone tried to access the property or their vehicle and boat on the front driveway on the day in question. She states her belief that the person may have forced the garden gate open trying to access the property and in doing so let the dogs out.

Affidavit of Man Ching Zoee Chan

[19]   Ms Chan says on 16 June 2020 she received a call from her mother telling her that Muimui had got out of the garden earlier in the day and the dog had been taken away by an Animal Management officer. She says her mother told her that all six screws on the side bolt latch on the garden gate were pulled off from the timber frame.

[20]   She says her mother’s neighbour (Kay) told her brother Kirby that the dogs had been barking excessively for over an hour earlier in the day. She says she was surprised by that as the dogs do not typically bark like that.

[21]   Ms Chan says she spoke to five of the neighbours after 16 June 2020 and she says all of them told her they had not heard the dogs barking excessively before. They did not hear anything on the day, some because they were not at home.

[22]   Ms Chan says she believes there was someone trying to break into the house and that triggered the dogs to bark in a way that was out of the ordinary. She refers to the alleged theft of sunglasses that her mother refers to and says since then her mother and Kirby have been more careful to check the gates and the doors are shut and secured before her mother leaves the house. Ms Chan annexes to her affidavit two emails as follows:

(a)From an Edwin Zwanenburg whose email address suggests he works at Downers, a construction company. He describes himself as having a CPEng. He offers various theories as to why the dog might have been barking and says it seems unlikely to him that even a large and strong

dog could have jumped against a timber door with sufficient force so that six screws were dislodged. He adds that the opinion of an experienced fence builder would probably carry more weight than his views; and

(b)The second email is from a Brandon Lee who states he has a builder’s licence. He says based on his 10 years’ experience in carpentry with six years of that as a licensed builder he could not imagine that a dog could cause the six screws to become loosened (he notes he had not seen the dog);

Building report

[23]   The Building Report is provided by a company Inspect House NZ, which describes  itself  as  a  building  inspection  service.  The  date  of  inspection  was  30 November 2020.

Submissions on the new evidence

[24]   The respondent opposes the application to adduce further evidence. Mr Collins for the respondent submits, in summary, that the evidence is not fresh, cogent and credible. He submits the affidavits contain multiple inadmissible hearsay statements and purported expert evidence that does not satisfy the criteria in the Evidence Act 2006.

[25]Regarding Mrs McDonald’s affidavit, Mr Collins submits:

(a)the evidence  is  not  fresh.  There  is  no  explanation  as  to  why  Mrs McDonald did not provide this affidavit prior to sentencing on  27 October 2020. She lives with Mr McDonald. She had ample opportunity to submit the affidavit at that stage of the proceedings;

(b)the evidence is not cogent. It relates to circumstances before the incident. The alleged burglaries occurred one year before the incident; and

(c)the evidence is not credible. No one witnessed the alleged break-in. The evidence is speculative at best.

[26]As to Man Ching Zoee Chan’s affidavit, Mr Collins submits:

(a)it does not contain fresh evidence. As with Ms McDonald’s affidavit, it could have been raised at the sentencing hearing;

(b)it is not cogent or credible. In particular, the affidavit contains inadmissible hearsay statements. None of the hearsay exceptions under the Evidence Act 2006 applies;

(c)it does not present the “expert” evidence in a sworn form. It is unknown if the experts know their correspondence has been filed at the High Court in support of this proceeding; and

(d)there is no credible evidence that someone broke into their house (such as an eyewitness account or Police report with fingerprint analysis).

[27]For the Building Report, Mr Collins submits:

(a)the evidence is not fresh. Again, the evidence could have been made available for the sentencing hearing;

(b)the evidence is not presented in a sworn affidavit;

(c)the inspection assesses the property almost six months after the incident on 16 June 2020. Therefore, the Building Report has no bearing on  Mr McDonald’s argument that the circumstances of the offence were exceptional; and

(d)the Building Report shows the steps Mr McDonald and his family took after the incident. In Risdom v Auckland Council, the Court stated

“subsequent steps to better secure a property against a dog’s escape illustrates that such could have occurred earlier.”3

[28]   Conscious perhaps of the criticism that there is no explanation in the affidavits as to why this evidence was not placed before the sentencing Judge, Mr Williams attempted to give an explanation from the bar. He said that because of the impact of the COVID-19 pandemic, Mr McDonald was not able to find someone to prepare a building report; that Mr McDonald, as an engineer, was involved with Auckland’s water crisis and that, coupled with his care for his son who has a depressive illness, meant his focus was elsewhere; and although the matter was reported to the Police, the Police did not attend at the property. As to the hearsay content of the affidavits, Mr Williams said that none of the neighbours was willing to provide an affidavit for the Court.

Fresh evidence – legal principles

[29]   Section 335(2)(c) of the Criminal Procedure Act 2011 (CPA) allows the Court to receive new evidence in an appeal if it considers it necessary or expedient in the interests of justice. Generally, the evidence must be: fresh (i.e. the evidence could not, with reasonable diligence, have been produced at trial); cogent; and credible.4 But the overriding criterion is the interests of justice.5

[30]   I assess the evidence in each affidavit in turn. First, it has not been demonstrated that Mrs McDonald’s affidavit could not have been brought before the District Court with reasonable diligence. It is not fresh. Attempting to explain delay by statements from the bar is not appropriate. But even then the statements do not satisfactorily explain the delay. Further, the content of the affidavit is not cogent as regards the key matter on appeal, namely the circumstances of the offence which occurred on 16 June 2020. The affidavit contains evidence regarding two alleged thefts from Mrs McDonald’s vehicle on the property which she says occurred in early 2019. That is more than a year before the offence in this case. She also refers to

3      Risdom v Auckland Council [2020] NZHC 905 at [18].

4      Lundy v R [2013] UKPC 28 [2014] 2 NZLR 273 at [120]; and R v Bain [2004] 1 NZLR 638 at

[22].

5      Lundy v R above n 4 at [120]; and R v Bain, above n 4 at [22].

additional security measures taken since the burglary in 2019. I agree with the submission Mr Collins makes that it is a long bow to draw to attempt to connect those alleged burglaries to the circumstances of the offence on 16 June 2020.

[31]   Mrs McDonald speculates that the damage to the gate was caused by a possible break-in attempt because the dogs were allegedly heard by a neighbour barking excessively. Not only is this speculation, but the evidence regarding what the neighbour heard is hearsay.

[32] This affidavit does not satisfy the test for admission of new evidence on appeal. It is not fresh or cogent. It is also not in the interests of justice to admit it (having regard to my assessment at [38] below). The affidavit is therefore not admitted.

[33]   The affidavit of Mrs McDonald’s daughter also does not satisfy the test for admission as fresh evidence. There is no evidence as to why it could not have been, with reasonable diligence, obtained for the sentencing hearing. It is also not cogent or credible because it contains largely inadmissible hearsay statements, for example:

(a)that her mother told her afterwards she was not home at the time of the attack but observed that six screws of the latch had been pulled off;

(b)that the neighbour, Kay, told Ms Chan’s brother that the dogs were barking excessively;

(c)that an Animal Management Officer told Mr and Mrs McDonald that the lock was damaged;

(d)that her brother had told her they purchased two security cameras for the property after the incident;

(e)statements from five unnamed neighbours of various properties as to whether or not the dogs on the property barked at other times and burglaries in the area; and

(f)statements said to have been made by her mother regarding alleged break-ins and security concerns.

[34]   As far as the email from the engineer, this purports to be expert evidence but it is simply an email which is not sworn and it does not set out the witness’ expert qualifications or experience. The engineer purports to offer evidence beyond his expertise, including speculation that a human may have caused the dog to bark in an incident which he did not witness. Further, it is not known what the engineer was provided with in terms of factual background and photographs. Finally, the engineer appears to concede he is not qualified to assist the Court. His email states:

So yeah … that’s my thoughts on the matter from the info you’ve given me. It is probably not helpful for me to get involved further as although I’m indeed a CPEng, that doesn’t add value or count for much in this case I don’t think.

[35]   The second email from the licensed building practitioner is also not reliable having regard to its form and unsworn nature. Again it is not clear what information the building inspector has been provided with. He has carried out a desktop review of unspecified information provided by Ms Chan.

[36]   It is also not in the interests of justice to admit the affidavit (having regard to my assessment at [38] below). The affidavit is therefore not admitted.

[37]   Finally, there is the Building Report. First, the report is not annexed to an affidavit of the house inspector. There are also issues with its cogency. It has been provided following an inspection of the property nearly six months after the incident on 16 June 2020. Mr Williams submits that the inspection report makes it clear that since the attack the property is safe and there are no longer any major hazards. However, the state of the property (including improvements since the attack) has no bearing on the assessment of exceptional circumstances.6 The report is neither fresh nor cogent nor is it in the interests of justice to admit it. Therefore, the report is not admitted.

6      Auckland Council v Hill, above n 2, at [5]; and Risdom v Auckland Council, above n 3, at [18].

[38]   Even if I had admitted the evidence, it would not have resulted in a different outcome on appeal. Taken at its highest, the evidence provides a speculative theory suggesting that a third party possibly loosened the gate prior to the offence. However, there are cases of this court and the Court of Appeal where third party intervention was greater than suggested in this case and that intervention did not reach the high threshold of exceptional circumstances that would make a destruction order unwarranted. In Easthope v Auckland Council,7 the Court of Appeal upheld the decision of the lower court that a dog escaping through an open gate and attacking another animal does not amount to exceptional circumstances under the Act. The gate had been left open by the appellant’s relative which resulted in the appellant’s dog escaping his property.

[39]   The decisions in Tuakalau v Auckland Council,8 Risdom v Auckland Council,9 and Ingle v Auckland Council,10 are to similar effect. Even if I were to accept that an unknown third party opened the gate, that does not amount to exceptional circumstances sufficient to overcome the presumption of a destruction order.

[40]   As noted  above,  the  appeal  was  based  entirely  on  the  new  evidence.  Mr Williams does not submit that the Judge’s decision to make the destruction order was otherwise incorrect. Having refused to admit the evidence on the appeal, the appeal must be dismissed.

Result

[41]The appeal is dismissed.

Gordon J

7      Easthope v Auckland Council [2018] NZCA 234 at [13] – [14].

8      Tuakalau v Auckland Council [2019] NZHC 3252.

9      Risdom v Auckland Council, above n 3.

10     Ingle v Auckland Council [2020] NZHC 1164.